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2017 DIGILAW 1495 (GAU)

Jelekha v. Union of India

2017-12-01

AJIT BORTHAKUR, UJJAL BHUYAN

body2017
JUDGMENT : Ujjal Bhuyan, J. 1. Heard Mr. M.U. Mahmud, learned counsel for the petitioner, Ms. P. Baruah, learned counsel for the Central Govt. and Ms. D. Das Barman, learned Govt. Advocate, Assam. We have also heard Mr. Debasish Baruah, learned Standing Counsel, Election Commission of India and Ms. A. Verma, learned counsel for the State Coordinator, National Register of Citizens (NRC). By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 10.03.2008 passed by the then Foreigners' Tribunal (1), Darrang at Mangaldoi in FT Case No. 195/2006 by answering the reference in favour of the State by declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971. 2. Be it stated that a reference was made by the Superintendent of Police (Border), Darrang with the allegation that petitioner was a foreigners who had illegally entered into India (Assam) from Bangladesh after 25.3.71. The reference was registered as FT Case No. 195/2006 before the then Foreigners' Tribunal (1), Darrang at Mangaldoi. It is seen that as per report and deposition of Border Police constables entrusted with the duty of serving notice upon the petitioner, Tribunal recorded that notice was duly served upon the petitioner in presence of witness but petitioner did not appear before the Tribunal and did not file written statement. Consequently, Tribunal decided to proceed ex-parte and by the order dated 10.03.2008 answered the reference in favour of the State. 3. Long thereafter, an application was filed by the petitioner for setting aside the aforesaid ex-parte order alongwith an application for condonation of delay. 4. In the meanwhile, following creation of additional Tribunals, the case record of FT Case No. 195/2006 was renumbered as Case No. FT (V) 2684/2016 before the Foreigners' Tribunal (5th). Darrang at Mangaldoi. By order dated 30.10.2017. Tribunal dismissed the application for setting aside ex-parte order. Tribunal observed that notice was duly received by the husband of the petitioner but in spite of the same, petitioner deliberately did not appear and contest the reference. Suddenly, after about 10 years, she appeared and complained that she did not receive notice. Disbelieving the version of the petitioner, prayer for setting aside ex-parte order was rejected. 5. Hence, this writ petition. 6. Suddenly, after about 10 years, she appeared and complained that she did not receive notice. Disbelieving the version of the petitioner, prayer for setting aside ex-parte order was rejected. 5. Hence, this writ petition. 6. While considering the writ petition, we noticed that notwithstanding declaration of the petitioner as an illegal foreigner as far back as on 10.03.2008, petitioner obtained an Elector Photo Identity Card issued by the Election Commission of India in her name on 01.10.2013 (page 32 to the writ petition). Her name was also included as a voter in respect of Dalgaon Legislative Assembly Constituency in the year 2010 at Sl. No. 337, showing her as a resident of village No. 4, Sialmari Khuti under Dalgaon Police Station in the district of Darrang. 7. Faced with such a situation, on 29.11.17 we directed presence of Standing Counsel of Election Commission of India and State Coordinator, NRC. 8. In so far contention of the petitioner regarding non-receipt of notice is concerned, we find it difficult to believe. The plea that petitioner came to know about the said order only after she was detained and lodged in detention camp at Tezpur in the month of August, 2017 is also difficult to believe. Perhaps it could be that because of her detention that she had moved the Tribunal for setting aside ex-parte order and thereafter has approached this Court as otherwise she would have continued to remain as a voter in India and thereby projected herself as a genuine citizen of this country. 9. However, having said that, we are also of the view that in such matters it would be in the interest of justice to have an opinion on merit. For that reason, we intend to grant one more opportunity to the petitioner to contest the reference notwithstanding her default and laches. But at the same time, we are mindful of the fact that for whatever reasons, persons who are declared as foreigners continue to exercise their franchise in India as citizens of India and with the NRC update exercise being presently undertaken, there is every likelihood of such persons getting their names entered into the NRC in violation of the law. 10. Therefore and having regard to the above, we issue the following directions:- 1. Order dated 10.03.2008 is set aside. 2. 10. Therefore and having regard to the above, we issue the following directions:- 1. Order dated 10.03.2008 is set aside. 2. Superintendent of Police (Border), Darrang shall produce the petitioner from detention before the Foreigners' Tribunal (5th), Darrang at Mangaldoi in connection with Case No. FT (V) 2684/2016 on 28.12.2017 at 10:30 a.m. on which date, petitioner shall file her written statement. 3. Superintendent of Police (Border), Darrang shall produce the petitioner before the Tribunal thereafter on such dates as may be fixed by the Tribunal. 4. Tribunal shall conclude the reference within a period of 60 (sixty) days from the date of appearance i.e. from 28.12.2017. 5. Election Commission of India shall take steps for cancellation of the Elector Photo Identity Card issued in the name of the petitioner on 1.10.2013 and also from the voters lists. 6. State Coordinator, NRC shall ensure that name of the petitioner is not included in the NRC. 7. Having regard to the nature of this category of cases, Registry shall issue an order to serve notice of filing of such cases on the Standing Counsel of Election Commission of India and State Coordinator, NRC, whose names should be reflected in the cause list irrespective of whether Election Commission of India and State Coordinator, NRC are parties to the proceeding or not. 8. Standing Counsel of Election Commission of India and State Coordinator, NRC shall ensure that they or their juniors are present in the Court and thereafter forward daily statement of pending and decided cases taken up for consideration during the day to the respective authorities. 11. Writ petition is disposed of. 12. Copy of this order be furnished to Mr. Dabasish Baruah and Ms. A. Verma, learned counsel for doing the needful. 13. Registry to inform the concerned Foreigners' Tribunal, Deputy Commissioner and Superintendent of Police (B) for doing the needful. This order may be brought to the notice of Registrar (Judl), Gauhati High Court.